Dix v. RCSH Operations, LLC

• Decision Date: 28 August 2020
• Docket Number: Case No: 2:20-cv-98-FtM-29MRM
• Parties: ROBERT DIX, on behalf of himself and all others similarly situated and MICHAEL PALOMBO, Plaintiffs, v. RCSH OPERATIONS, LLC, Defendant.
• Court: U.S. District Court — Middle District of Florida

ROBERT DIX, on behalf of himself and all otherssimilarly situated and MICHAEL PALOMBO, Plaintiffs, v. RCSH OPERATIONS, LLC, Defendant.

Case No: 2:20-cv-98-FtM-29MRM

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA FORT MYERS DIVISION

August 28, 2020

OPINION AND ORDER

This matter comes before the Court on defendant's Motion to Dismiss Plaintiff's Amended Class/Collective Action Complaint (Doc. #26) filed on June 15, 2020. Plaintiffs filed an Amended Response in Opposition (Doc. #37) on July 2, 2020. For the reasons set forth below, the motion is denied.

I.

A. Parties

According to the allegations in the operative pleading, defendant RCSH Operations, LLC is a New Orleans limited liability company that operates a nationwide restaurant chain with numerous locations in the state of Florida. (Doc. #6, ¶¶ 1, 13.) Plaintiff Robert Dix is a Lee County, Florida resident who worked for defendant as a restaurant server at a Bonita Springs steakhouse from August 2018 to September 2019. (Id. ¶ 2, 5, 25.) Plaintiff Michael Palombo joined this action after it was filed and also worked as a server at the Bonita Springs restaurant. (Doc. #21; Doc. #21-1, p. 3.)

B. Factual Background

According to plaintiffs' allegations, defendant has a company-wide policy requiring all newly hired servers to purchase both a uniform and various tools needed for the position. (Doc. #6, ¶¶ 31-33.) When Dix was hired in August 2018, he was required to purchase a uniform consisting of formal pressed white dress shirts, black formal slacks, a tie, a black belt, black socks, and non-slip shoes. (Id. ¶¶ 34-35.) Dix was also required to purchase a wine key, black pens, and a lighter. (Id.) In total, Dix spent more than $272 on these items. (Id. ¶ 35.) Dix and the other servers were required to wear the uniform and use the tools each day, and if a server failed to wear the uniform, they would not be permitted to work their shift. (Id. ¶ 40.) Regular wear and tear required servers to replace parts of the uniform throughout their employment. (Id. ¶ 42.) Neither Dix nor any other similarly situated servers were ever reimbursed for the uniform or the tools they were required to purchase and replace. (Id. ¶¶ 38-39, 42.)

In addition to the above policy, defendant required all newly hired servers undergo a week of training during which they were paid the applicable federal and/or state minimum wage. (Id. ¶30.) After the week of training, Dix was paid an hourly wage by defendant, plus the tips he received as a server. (Id. ¶¶ 49-50.) Dix and other servers would typically be scheduled to report to work at 4 p.m. and work through 10 p.m. (Id. ¶ 44.) However, defendant would instruct the servers to spend time setting up and "breaking down" the restaurant, so that during a six-hour shift servers were regularly required to spend twenty-five percent of their shift performing "non-tipped" duties. (Id. ¶¶ 45-47, 52.) At all times, the servers were paid less than minimum wage.¹ (Id. ¶ 55.)

C. Procedural Background

Dix initiated this action in February 2020 and filed an Amended Class/Collective Action Complaint (Doc. #6) on March 1, 2020. The amended complaint alleges four claims against defendant: Counts One and Two allege violations of the federal Fair Labors Standards Act (FLSA), and Counts Three and Four allege violations of the Florida Minimum Wage Act (FMWA) and Florida's Constitution. (Id. pp. 13-30.) Counts One and Three relate to defendant's failure to reimburse uniform and tool expenses (id. pp. 13-15, 18-24), while Counts Two and Four relate to the performance of non-tipped duties (id. pp. 15-17, 24-30.) The amended complaintasserts the FLSA claims as collective actions pursuant to 29 U.S.C. § 216(b) and the FMWA claims as class actions pursuant to Federal Rule of Civil Procedure 23.

On June 15, 2020, defendant filed the Motion to Dismiss currently before the Court. (Doc. #26). Plaintiffs filed an Amended Response in Opposition (Doc. #37) on July 2, 2020, and the matter is now ripe for review.

II.

A. Legal Standards

Under Federal Rule of Civil Procedure 8(a)(2), a complaint must contain a "short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). This obligation "requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citation omitted). To survive dismissal, the factual allegations must be "plausible" and "must be enough to raise a right to relief above the speculative level." Id. at 555; see also Edwards v. Prime Inc., 602 F.3d 1276, 1291 (11th Cir. 2010). This requires "more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citations omitted).

In deciding a Rule 12(b)(6) motion to dismiss, the Court must accept all factual allegations in a complaint as true and takethem in the light most favorable to the plaintiff, Erickson v. Pardus, 551 U.S. 89 (2007), but "[l]egal conclusions without adequate factual support are entitled to no assumption of truth," Mamani v. Berzain, 654 F.3d 1148, 1153 (11th Cir. 2011) (citations omitted). "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Iqbal, 556 U.S. at 678. Factual allegations that are merely consistent with a defendant's liability fall short of being facially plausible. Chaparro v. Carnival Corp., 693 F.3d 1333, 1337 (11th Cir. 2012) (citations omitted). Thus, the Court engages in a two-step approach: "When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief." Iqbal, 556 U.S. at 679.

B. Analysis

As noted above, Counts One and Two of the amended complaint allege violations of the FLSA, and Counts Three and Four allege violations of the FMWA and the Florida Constitution. Both the FLSA and the FMWA require employers pay employees a minimum hourly wage. 29 U.S.C. § 206(a); § 448.110, Fla. Stat. To state a claim for a violation of the FLSA or the FMWA, a plaintiff must allege: (1) that he was employed by the defendant during the time period involved; (2) that he was engaged in commerce or the production of goods for commerce or employed by an enterprise engaged in commerceor in the production of goods for commerce; and (3) that the defendant failed to pay the overtime or minimum compensation required by law. Copley v. Debt Advisory Grp., Inc., 2010 WL 11626625, *2 (M.D. Fla. May 12, 2010) (citations omitted).

(1) Costs of Uniform and Tools

In Counts One and Three, defendant is alleged to have failed to pay the required minimum wage because it did not reimburse Dix and similarly situated employees for the costs of a uniform and various tools. In its motion, defendant argues that Counts One and Three should be dismissed because (1) the clothing that Dix purchased does not constitute a uniform as a matter of law, and (2) defendant was not required to reimburse Dix for the other items he purchased. (Doc. #26, pp. 4-7.) The Court will address these arguments in turn.

Under the FLSA, "[u]niforms are primarily for the benefit of the employer, [and] therefore a minimum wage employee cannot be required to purchase their own uniforms." Nail v. Shipp, 2019 WL 3719397, *7 (S.D. Ala. Aug. 6, 2019) (citing Arriaga v. Fla. Pac. Farms, L.L.C., 305 F.3d 1228, 1236 (11th Cir. 2002)). "In Florida, the FMWA expressly adopts the statutory and regulatory provisions of the FLSA." Kubiak v. S.W. Cowboy, Inc., 2014 WL 2625181, *1 (M.D. Fla. June 12, 2014) (citing Fla. Const. Art. X, § 24). In determining what constitutes a "uniform," the Department of Labor(DOL) has provided the following definition in its Field Operations Handbook:

(f) Definition of "uniforms"

(1) Although there are no hard-and-fast rules in determining whether certain types of dress are considered uniforms for purposes of section 3(m), the following principles are applicable:

a. If an employer merely prescribes a general type of ordinary basic street clothing to be worn while working and permits variations in details of dress, the garments chosen by the employees would not be considered to be uniforms.

b. On the other hand, where the employer does prescribe a specific type and style of clothing to be worn at work (e.g., where a restaurant or hotel requires a tuxedo or a skirt and blouse or jacket of a specific or distinctive style, color, or quality), such clothing would be considered uniforms.

c. Other examples would include uniforms required to be worn by guards, cleaning and culinary personnel, and hospital and nursing home personnel.

DOL Field Operations Handbook § 30c12(f). When attire is considered "ordinary street clothing" rather than a uniform, "the expense of purchasing and maintaining such clothing is an expense an employee would encounter as a normal living expense, and is therefore not primarily for the benefit of the employer." Arriaga, 305 F.3d at 1244.

The amended complaint describes the "uniform" defendant required its servers purchase as follows: formal pressed whitedress shirts, black formal slacks, a tie, a black belt, black socks, and non-slip shoes. (Doc. #6, ¶ 35.) Defendant argues that such attire does not constitute a "uniform" as a matter of law for purposes of the FLSA. (Doc. #26, pp. 4-6.) Defendant cites to authority from both the DOL as well as various federal courts throughout the country. See U.S. Dep't of Labor, Wage & Hour Div., Op. Ltr. FLSA2008-4 (May 15, 2008) (dark colored, non-slip sole shoes were not a "uniform" under the FLSA); U.S. Dep't of Labor, Wage & Hour Div., Op. Ltr. WH-466 (July 28, 1978) ("white shirt and trousers of a dark color" do not constitute a uniform); Salinas v. Starjem Rest. Corp., 123 F. Supp. 3d 442, 476 (S.D. N.Y. 2015) ("black dress pants, black dress shoes, and black belt" do not constitute a uniform...